Settlement Agreement and Mutual Release - Peabody Western Coal Co., Southern California Edison Co., Salt River Project Agricultural Improvement and Power District, the City of Los Angeles and Nevada Power Co.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered into this 16th day of October 2002, by and among Peabody Western Coal
Company ("Peabody"), on the one hand, and Southern California Edison Company
("Edison"), Salt River Project Agricultural Improvement and Power District
("SRP"), the City of Los Angeles by and through the Department of Water and
Power ("LADWP"), and Nevada Power Company ("NPC"), on the other hand
(collectively referred to in this Agreement as the "Participants"). Peabody and
the Participants are hereinafter sometimes individually referred to in this
Agreement as a "Party" and collectively as the "Parties."
I. RECITALS
A. Peabody owns and operates the Black Mesa Mine ("BMM"), a surface
coal mine located in Northeastern Arizona, under leases between Peabody and the
Navajo and Hopi Tribes ("Indian Leases"). BMM includes an undivided forty
percent (40%) share of all facilities used jointly with the Kayenta Mine ("Joint
Facilities").
B. The Participants own and operate the Mohave Generating Station
("MGS"), a coal-fired electric power plant located in Clark County, Nevada.
C. Peabody, through its predecessor in interest, Peabody Coal Company
("PCC") and the Participants entered into the Amended Mohave Project Coal Supply
Agreement ("CSA") on May 26, 1976, in which Peabody agreed to sell and deliver
and the Participants agreed to purchase and receive, the coal requirements of
the MGS as provided for in the CSA.
D. By document dated March 26, 1985, PCC and the Participants entered
into a Memorandum of Administrative Guidelines ("MOAG") setting forth certain
procedures to be employed in the administration of the CSA.
E. Effective as of December 31, 1995, PCC assigned all of its rights,
obligations and interests in the Indian Leases, the CSA, and the MOAG to
Peabody.
F. Pursuant to the CSA, PCC and later Peabody has mined, and Peabody
continues to mine, coal from the BMM and ships it to the MGS by means of a
slurry pipeline. The MGS is BMM's only customer, and BMM is the sole source of
coal for the MGS.
G. Pursuant to Section 1.01 of the CSA, the Initial Term of the CSA
ends on December 31, 2005. The Participants have the right to extend the
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Initial Term for a period or periods of time not exceeding fifteen (15) years,
as provided in Sections 1.02 and 1.03 of the CSA. As of the date of this
Agreement, however, the Participants have not elected to exercise their
extension right.
H. Beginning in 1994, certain disputes arose between PCC and the
Participants about the financial responsibility for two categories of mining
costs: (1) Retiree Health Care Costs ("RHCC") and (2) Final Reclamation Costs
("FRC"). RHCC refers to the costs alleged to be recoverable from the
Participants under the CSA, whether accounted for on a cash, accrual or other
basis, of health care benefits (including, but not limited to, any medical,
dental, vision or mental health care), and life insurance Peabody will or may
provide after 2005 for retired Peabody employees at the BMM who, upon satisfying
certain vesting requirements, are or would be entitled to receive such benefits
from Peabody for themselves and/or their dependents, including forty percent
(40%) of all such costs relating to the Joint Facilities. FRC refers to the
costs alleged to be recoverable from the Participants under the CSA, whether
accounted for on a cash, accrual or other basis, of closing, decommissioning and
reclaiming the BMM after 2005, including environmental monitoring, to comply
with Peabody's reclamation obligations under applicable requirements, including
forty percent (40%) of all such costs relating to the Joint Facilities and also
including costs for bonding, insurance, security, administration, taxes and
other items as described in Donald Schaible's June 2000 report in the Action (as
defined in recital I below). RHCC and FRC are sometimes jointly referred to in
this Agreement as "the Disputed Costs." The Parties' respective estimates of the
Disputed Costs prepared before the mediation referenced below in recital K were
based upon the CSA expiring December 31, 2005, and do not represent the amount
of costs Peabody may experience if the CSA is extended beyond December 31, 2005.
The assignment referenced above in recital E included all of PCC's claims and
rights against the Participants with respect to the Disputed Costs. Accordingly,
references in this Agreement to RHCC, FRC or the Disputed Costs include the
subject costs in dispute regardless of whether they concern the period before or
after PCC's assignment to Peabody. The Participants disputed PCC's claim for
recovery of RHCC and FRC.
I. While attempting to negotiate a resolution of the foregoing dispute,
Peabody and the Participants entered into a "Non-Waiver Agreement," which had an
effective date of December 12, 1994. On June 20, 1996, after the Parties were
unable to negotiate a resolution of their dispute, the Participants filed an
action against Peabody in the Superior Court of Maricopa County, Arizona (the
"Court"), entitled "Southern California Edison Company, et al. vs. Peabody
Western Coal Company," Case No. CV 96-10844 (the "Action"), seeking a
declaratory judgment that the Participants do not owe the Disputed Costs.
Peabody filed a counterclaim in the Action seeking both a declaratory judgment
on that question and damages. After the Court
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realigned the parties, the Participants asserted a counterclaim for damages for
alleged overpayments to Peabody under the CSA for certain reclamation costs. The
Participants and Peabody each asserted numerous affirmative defenses to the
others' claims.
J. For several years, the Parties have engaged in extensive discovery
and motion practice regarding the claims in the Action and the Disputed Costs.
Additionally, the Court has issued several interlocutory opinions or rulings
regarding various issues, including without limitation, liability for FRC and
RHCC and several defenses to liability asserted by the Participants.
K. The Parties engaged in settlement discussions and, on June 17, 2002,
participated in a full-day mediation conducted by Antonio Piazza, at which time
the Parties reached a tentative settlement agreement in principle to resolve all
claims and counterclaims that were asserted, or could have been asserted, in the
Action pertaining to the Disputed Costs.
L. Without admitting any liability for the various disputes and claims
between and among them, the Parties have now jointly prepared this Agreement to
fully and finally resolve all claims and counterclaims that were asserted, or
could have been asserted, in the Action pertaining to the Disputed Costs.
NOW THEREFORE, the Parties agree as follows:
II. COVENANTS
1. Settlement Payments By the Participants.
1.1 Principal Payment. In consideration of the covenants,
undertakings, releases and other consideration provided for
herein, the Participants shall, subject to the provisions of
paragraph 2, pay Peabody the principal amount of Thirty-One
Million Dollars ($31,000,000.00) (the "Principal") in the
manner specified below.
1.2 Interest. The Participants shall further pay to Peabody
interest on the unpaid balance of the Principal at the annual
rate of eight percent (8%), with interest accruing beginning
on September 1, 2002 (the "Interest").
1.3 Installments. Subject to paragraphs 1.4 and 1.5, the
Participants shall pay the Principal and Interest in
thirty-six (36) equal monthly installments of Nine Hundred and
Ninety-Four Thousand Six Hundred and Thirty-Five Dollars and
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Thirteen Cents ($994,635.13) commencing in January 2003 (the
"Installments"). Each monthly Installment shall be due
concurrently with the date on which payment is due under the
CSA for coal delivered in the previous month. For example, if
the payment for coal delivered in December 2002 is due on
January 19, 2003, then the first Installment payment required
under this paragraph shall likewise be due on January 19,
2003. The amount of the Installments reflects the Interest
provided for in paragraph 1.2 but not royalties and taxes
provided for in paragraph 1.5. Except as provided for in
paragraph 1.4 with respect to advance payments of Installments
due in future months (as to which interest shall be adjusted
as specified in paragraph 1.4 and Exhibit A to this
Agreement), if the Participants pay each currently due
Installment concurrently with a timely payment of the regular
monthly coal payment due under the CSA for deliveries by
Peabody in the preceding month, no adjustment for the Interest
component of the Installment shall be required regardless of
whether the date of each actual Installment payment
corresponds to the date (the 18th day of each payment month)
that was assumed by the Parties in Exhibit A for the purpose
of calculating the amount of the monthly Installments. If the
Participants fail to timely pay any Installment for reasons
other than those provided for below in paragraph 2, interest
shall accrue on the overdue Installment at the annual rate of
eight percent (8%) from the date that the Installment was due
until the date the Installment is paid.
1.4 Prepayment. Any or all of the Participants may, concurrently
with the making of any regular monthly coal payment under the
CSA, pay, without penalty, any or all of the Installments or
portion thereof prior to the due date that would otherwise
apply under paragraph 1.3. If, in accordance with the
preceding sentence, any or all of the Participants pay any
Installment or portion thereof prior to the due date described
in paragraph 1.3, the amount of such Installment payment shall
be discounted by the amount of Interest, calculated at the
annual rate of eight percent (8%), avoided as a result of
paying the Installment or portion thereof prior to the due
date. For convenience, the Parties have attached hereto as
Exhibit A a table that shows, on a monthly basis beginning
with September 2002, and on both a collective and individual
Participant basis, the agreed to net present value at such
eight percent (8%) discount rate of all remaining unpaid
Installments (including, for the months beginning January
2003, the Installment that is scheduled to be paid to Peabody
in that month) based on an assumed payment date of the 18th
day of each of the months shown in the table
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(recognizing that the actual payment date may vary from the
18th of the month as provided for in paragraph 1.3 and in this
paragraph 1.4) and assuming also that all prior required
Installments have been paid when due and no advance payment of
any Installment under the provisions of this paragraph 1.4 has
previously been made by a Participant. Unless a particular
advance payment (either by an individual Participant or
jointly by two or more Participants) leaves no balance owing
to Peabody by any of the Participants, the Parties shall,
within ten (10) business days after the making of any advance
payment(s), recalculate the monthly amount of the remaining
Installments that are due from the Participants as to which a
balance is still owing. Exhibits A and A-1 hereto illustrate
an example prepayment scenario under this paragraph 1.4.
1.5 Royalties and Taxes. Consistent with and pursuant to the
provisions of the CSA pertaining to royalties and taxes,
including but not limited to the provisions in section 6.02
regarding protests and refunds, the Participants shall pay to
Peabody the royalties and taxes associated with the payments
made by the Participants under this Agreement. In accordance
with the historical billing practice under the CSA with
respect to payments for coal delivered, the royalties and
taxes associated with each Installment shall be paid by the
Participants to Peabody concurrently with the payment of the
Installment and at the same royalty and tax rates as apply to
coal delivered by Peabody in the month preceding the
Installment payment (which rates shall be identified by
Peabody in its coal invoices to the Participants under the
CSA). Royalties and taxes associated with an advance payment
made by a Participant as provided in paragraph 1.4 shall be
the responsibility of the Participant which makes such advance
payment and shall be paid to Peabody concurrently with the
advance payment at the same royalty and tax rates as apply to
coal delivered by Peabody in the month preceding the advance
payment (which rates shall be identified by Peabody in its
coal invoices to the Participants under the CSA). If Peabody
subsequently receives a refund or credit of all or any portion
of a royalty or tax reimbursement payment made by the
Participants, or any of them, in connection with the payment
of any Installment, Peabody shall promptly transmit or credit
to the appropriate Participant(s) the full amount of the
refund or credit, including any interest paid or credited to
Peabody by the entity making the refund or giving the credit.
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1.6 No Joint and Several Liability. All payment obligations of the
Participants under this Agreement shall be several and not
joint and shall be in the proportion of their respective
interests in the Mohave Project, which are as follows: Edison:
56%; SRP: 20%; LADWP: 10%; NPC: 14%.
1.7 Default in Payment. If a Participant defaults in payment of
its proportionate share of any Installment required under
paragraph 1 of this Agreement, such default shall constitute,
as to that Participant only, a breach of both this Agreement
and the CSA. Such default by a particular Participant shall
not, however, be deemed a breach of either this Agreement or
the CSA by any Participant who is not in default of its
obligations under paragraph 1 of this Agreement.
2. Effect of Subsequent Events on Participants' Settlement
Payment Obligation.
2.1 Cessation of Coal Purchases. If the Participants terminate the
CSA prior to December 31, 2005, or if they otherwise stop
accepting coal deliveries from Peabody before that date (other
than as a result of the circumstances described in the first
sentence of paragraph 2.2), the Participants shall not, by
virtue of such early termination or cessation of coal
purchases, be entitled to any offset or reduction in the
payments specified in paragraphs 1.3 and 1.5 above (other than
those that result from advance payments as provided for in
paragraph 1.4).
2.2 Offset for Deficiency in Coal Delivery. If during any month
from September 2002 through November 2005 Peabody fails, for a
reason other than a force majeure (as defined in Section 14 of
the CSA), to deliver coal to the Black Mesa Pipeline in the
quantities required by the CSA (a "Deficient Delivery"), the
Participants shall be entitled to a prorated offset against
the payments specified in paragraph 1 above. For purposes of
the preceding sentence, any coal that is properly rejected by
the Participants under Section 5.04 of the CSA that is in
excess of the first 100,000 tons of coal that has been so
rejected following the date of this Agreement shall not be
included in determining the quantity of coal delivered by
Peabody in a particular month. If a Deficient Delivery occurs
during the months of September, October or November of 2002,
the prorated offset for each such month in which the
deliveries are deficient shall be computed by multiplying
$203, 835.62 for September, $210,630.14 for October, and
$203,835.62 for November (i.e. the amount of interest which
will accrue each such month on the $31,000,000
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Principal) times the percentage by which Peabody's delivery of
coal for such month was deficient, and the offset shall be
applied against the Installment due in January 2003. If a
Deficient Delivery occurs during any month from December 2002
through November 2005, the prorated offset for each such month
in which the deliveries are deficient shall be computed by
multiplying $994,635.13 times the percentage by which
Peabody's delivery of coal for such month was deficient, and
each such offset shall be applied against the Installment that
is due the following month, or, if the balance owed by the
Participants under this Agreement at that time is insufficient
to permit the offset in full, any excess over the amount
offset shall be refunded by Peabody to the Participants within
twenty (20) days after the end of the month in which the
deliveries were deficient. The provisions of this paragraph
2.2 are for the purposes of this Agreement only and, as
provided for in paragraph 5.4, shall not be construed as
modifying or otherwise affecting Peabody's delivery
obligations under the CSA.
2.3 No Release of Other Claims. Other than with respect to the
Parties' respective claims and defenses related to the
Disputed Costs, which are resolved by this Agreement, nothing
in this paragraph or this Agreement shall be read as limiting
or otherwise restricting the damages or other remedies that
either the Participants or Peabody may seek for any alleged
breach of the CSA.
3. Claims by Third Parties.
3.1 Position of the Parties and Cooperation. The Parties agree and
believe that the payments and other undertakings in this
Agreement should not cause or result in any claims by third
parties. Specifically, but without limitation, the Parties do
not believe that interest, penalties or late payment charges
can or should be assessed on any royalty or tax payments
associated with the payments made by the Participants as
provided for herein. In the event this position of the Parties
is challenged by the Navajo Nation, the Hopi Tribe, the United
States on behalf of the Tribe(s), the State of Arizona, and/or
any agencies, departments, courts, tribunals, or political
subdivisions of the foregoing, or by any other third parties
(collectively, "Governmental Entities"), then the Parties
agree to cooperate with one another in good faith to defend
against such a challenge. Notwithstanding the foregoing,
neither Party shall be responsible to the other for such
claims by third parties except as expressly provided for
herein.
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3.2 Post-12/11/94 Governmental Claims.
3.2.1 Included Claims. If any Governmental Entity asserts a claim or
challenge to the Parties' position mentioned in paragraph 3.1
above in connection with the payments provided for in this
Agreement, which claim or challenge relates, in whole or in
part, to additional liabilities (including, but not limited
to, interest, penalties, late payment charges, legal fees and
other litigation costs) Peabody is alleged to have to any such
Governmental Entity based on a claim or determination by a
Governmental Entity that royalties or taxes that are the
responsibility of the Participants under paragraph 1.5 of this
Agreement became due earlier than the dates of associated
payments made by the Participants pursuant to paragraphs 1.1
through 1.4 of this Agreement but after December 11, 1994
("Post-12/11/94 Governmental Claims"), then the Parties agree
to the following procedure, and the Participants agree to
indemnify Peabody, in accordance with the provisions of
paragraphs 3.2.2 through 3.2.5 of this Agreement.
3.2.2 Notice and Defense Procedures. Within seven (7) business days
after receipt of a Post-12/11/94 Governmental Claim, Peabody
shall provide written notification of such claim to the
Participants. Within twelve (12) business days after their
receipt of Peabody's notice, the Participants shall provide
written instructions to Peabody as to whether it should resist
the Post-12/11/94 Governmental Claim or acquiesce to it. If
the Participants instruct Peabody to defend against the
Post-12/11/94 Governmental Claim, Peabody shall do so until
instructed otherwise by the Participants. If no such written
instructions are provided by the Participants within such
twelve (12) business days period following receipt of
Peabody's written notification of such a Post-12/11/94
Governmental Claim, then Peabody may acquiesce to such claim;
provided, however, if Peabody determines to defend against
such a claim in the absence of any instruction to do so by the
Participants, Peabody shall be solely responsible for all
associated legal fees and other litigation costs.
3.2.3 Participation by the Participants. If the Participants
instruct Peabody to defend against a Post-12/11/94
Governmental Claim as provided for in paragraph 3.2.2, then
the Participants, or any of them, may elect by written notice
to Peabody to participate directly with Peabody (a) in any
proceeding involving such a claim, and (b) in any
communications with other parties to such
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a proceeding regarding the merits of the claim or claims.
Whether or not such direct participation is sought by the
Participants, the Participants shall be entitled (i) to a
reasonable opportunity, upon request, to review and comment on
any drafts of pleadings or other documents prepared by or on
behalf of Peabody prior to the time such pleadings or other
documents are filed or otherwise submitted in connection with
any proceeding involving a Post-12/11/94 Governmental Claim
and (ii) to prompt receipt of copies of all filings in the
proceeding and of Peabody's communications to or from other
parties in the proceeding. Peabody shall not be entitled to
include in invoices to the Participants, or attempt to
otherwise pass through to them via any price adjustment
mechanism in the CSA, any litigation costs or payments arising
from any settlement entered into by Peabody that would
resolve, in whole or in part, a Post-12/11/94 Governmental
Claim, unless the settlement has been approved in writing by
the Participants.
3.2.4 Indemnity by the Participants. The Participants agree, subject
to the provisions of paragraphs 3.2.2, 3.2.3 and 3.2.5, that
they shall indemnify, defend and save Peabody harmless from
and against any and all Post-12/11/94 Governmental Claims,
including, but not limited to, interest, penalties, late
payment charges, additional royalties and taxes payable with
respect to any interest, penalties or late payment charges as
may be imposed, reasonable legal fees and other litigation
costs incurred by Peabody as a result of its compliance with
instructions from the Participants. If Peabody acquiesces to
any Post-12/11/94 Governmental Claim with written approval by
the Participants or in the absence of written instructions
from the Participants in accordance with paragraph 3.2.2, or
if a final non-appealable order is issued by an appropriate
legal authority which sustains such Post-12/11/94 Governmental
Claim, and Peabody is thereby obligated to pay interest,
penalties, late payment charges, additional royalties and
taxes payable with respect to any interest, penalties or late
payment charges as may be imposed, or other charges to a
Governmental Entity, the Participants shall, subject to
paragraph 3.2.5, reimburse Peabody for such additional
amounts. The Participants shall not be liable to Peabody for
any interest, penalties or other charges imposed by a
Governmental Entity as a result of any filing errors by
Peabody or any delay by Peabody in remitting royalties or
taxes received by Peabody from the Participants under
paragraph 1.5 of this Agreement. Notwithstanding the
foregoing, if a Governmental Entity asserts a Post-12/11/94
Governmental Claim but an Award Regarding Pre-12/12/94 Claims
(as defined
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in subparagraph 3.2.5(b) below) is made in the same
proceeding, then paragraphs 3.2.5 and 3.3.2 shall apply
instead of this paragraph for the purpose of allocating the
indemnity obligations of the Parties.
3.2.5 Overlapping Claims. To the extent a claim or challenge
concerns both Pre-12/12/94 Governmental Claims (as defined in
paragraph 3.3.1) and Post-12/11/94 Governmental Claims, then:
(a) The Participants shall only be obligated to indemnify
Peabody for interest, penalties, late payment charges,
additional royalties and taxes payable with respect to any
interest, penalties or late payment charges as may be imposed,
and other charges, if any, awarded against Peabody or its
predecessors with respect to the Post-12/11/94 Governmental
Claims ("Award Regarding Post-12/11/94 Claims"); and
(b) If the Participants instruct Peabody to defend against the
Post-12/11/94 Governmental Claim, the Participants shall only
be obligated to indemnify Peabody for reasonable legal fees
and other litigation costs in the proportion that the Award
Regarding Post-12/11/94 Claims bears to the sum of that award
and the amount of interest, penalties, late payment charges,
additional royalties and taxes payable with respect to any
interest, penalties or late payment charges as may be imposed,
and other charges, if any, awarded against Peabody or its
predecessors with respect to the Pre-12/12/94 Governmental
Claims ("Award Regarding Pre-12/12/94 Claims").
3.3 Pre-12/12/94 Governmental Claims.
3.3.1 Indemnity by Peabody. Peabody agrees, subject to the
provisions of paragraph 3.3.2, that it shall defend, indemnify
and hold the Participants harmless from and against any and
all additional liabilities (including, but not limited to,
interest, penalties, late payment charges, additional
royalties and taxes payable with respect to any interest,
penalties or late payment charges as may be imposed, legal
fees and other litigation costs) Peabody may have or incur to
any Governmental Entity based on a claim by a Governmental
Entity that royalties or taxes that are the responsibility of
the Participants under paragraph 1.5 of this Agreement became
due on a date or dates before December 12, 1994 ("Pre-12/12/94
Governmental Claims"). Notwithstanding the foregoing, if a
Governmental Entity asserts a Pre-12/12/94 Governmental Claim
but an Award Regarding Post-12/11/94 Claims (as defined in
subparagraph 3.2.5(a)
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above) is made in the same proceeding, then paragraphs 3.2.5
and 3.3.2 shall apply instead of this paragraph for the
purpose of allocating the indemnity obligations of the
Parties.
3.3.2 Overlapping Claims. To the extent a claim or challenge
concerns both Pre-12/12/94 Governmental Claims and
Post-12/11/94 Governmental Claims, Peabody shall only be
obligated to indemnify the Participants for any Award
Regarding Pre-12/12/94 Claims. Peabody's reasonable legal fees
and other litigation costs shall, in this situation, be shared
pro rata by the Participants (considered as a single party for
this purpose) and Peabody in accordance with their respective
shares of the liability for interest, penalties or other
charges that is assessed against Peabody or its predecessors
in the relevant proceeding or proceedings (i.e., in the same
manner described in subparagraph 3.2.5(b)); provided, however,
that such sharing shall not apply to legal fees and other
litigation costs for which Peabody is solely responsible under
paragraph 3.2.2.
3.4 Definition of Litigation Costs. As used in this paragraph 3,
the term "litigation costs" means reasonable charges by
courts, court reporters, outside legal counsel, outside
experts, and mediators, and reasonable charges of a similar
nature, and does not include any internal costs of the
Parties.
4. Mutual Releases and Dismissal of Action.
4.1 Release of the Participants by Peabody. For and in
consideration of the covenants, undertakings, payments,
release and other consideration set forth in this Agreement,
and subject to the provisions of paragraph 4.3 below, Peabody,
on behalf of itself and each of its predecessors (including,
but not limited to, PCC), successors and assigns, by operation
of law or otherwise, hereby releases and forever discharges
the Participants, their predecessors in interest, and each of
their respective past, present and future shareholders,
related and affiliated business entities, officers, directors,
employees, attorneys, legal representatives, agents, and
insurers (all such persons and entities hereinafter
collectively referred to as the "Participants Released") from
any and all claims, counterclaims, actions or causes of
action, demands of any nature whatsoever, past, or present,
whether arising out of any alleged violation of any federal or
state statute, negligence, breach of contract, fraud, warranty
or any other theory, whether legal or equitable, and the
consequences thereof, including any claims, losses, costs or
damages, including compensatory and punitive damages, in
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each case whether known or unknown, liquidated or
unliquidated, fixed or contingent, direct or indirect, which
Peabody and its related or affiliated business entities, or
its predecessors, successors, and assigns ever had, now have,
or may in the future claim to have against any of the
Participants Released arising from, concerning or pertaining
to (i) the Disputed Costs as defined herein, (ii) the Action
and/or (iii) any of the claims in the Action, including, but
not limited to, all counterclaims in the Action.
4.2 Release of Peabody by the Participants. For and in
consideration of the covenants, undertakings, release and
other consideration set forth in this Agreement, and subject
to the provisions of paragraph 4.3 below, the Participants, on
behalf of themselves and each of their respective
predecessors, successors and assigns, by operation of law or
otherwise, hereby release and forever discharge Peabody, its
predecessors in interest (including, but not limited to, PCC),
and each of their respective past, present and future
shareholders, related and affiliated business entities,
officers, directors, employees, attorneys, legal
representatives, agents, and insurers (all such persons and
entities hereinafter collectively referred to as the "Peabody
Parties Released") from any and all claims, counterclaims,
actions or causes of action, demands of any nature whatsoever,
past or present, whether arising out of any alleged violation
of any federal or state statute, negligence, breach of
contract, fraud, warranty or any other legal theory, whether
legal or equitable, and the consequences thereof, including
any claims, losses, costs or damages, including compensatory
and punitive damages, in each case whether known or unknown,
liquidated or unliquidated, fixed or contingent, direct or
indirect, which the Participants and their respective related
or affiliated business entities, or their predecessors,
successors, and assigns ever had, now have, or may in the
future claim to have against any of the Peabody Parties
Released arising from, concerning or pertaining to (i) the
Disputed Costs as defined herein, (ii) the Action and/or (iii)
any of the claims in the Action, including, but not limited
to, all counterclaims in the Action.
4.3 Release Limitation. The releases set forth in paragraphs 4.1
and 4.2 assume that the CSA will terminate on or before
December 31, 2005. If the CSA should, instead, be extended
beyond that date or replaced by another coal supply agreement
whose term ends after December 31, 2005, the provisions of
paragraph 6.2 shall apply and such releases shall not apply to
the Disputed Costs or be construed to apply to the final
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reclamation costs or retiree health care costs associated with
such extended or replacement agreement.
4.4 Dismissal of Action. No later than ten (10) business days
after the execution of this Agreement, the Parties' respective
counsel will execute and file a stipulation for dismissal with
prejudice of the Action, with each Party to bear its own
respective attorneys' fees and costs, in the form attached as
Exhibit B. The Participants may conduct a reasonable audit of
Peabody's books and records, to be completed no later than
one-hundred eighty (180) days from the effective date of this
Agreement, for the purpose of confirming that none of
Peabody's attorneys' fees and litigation costs (as defined in
paragraph 3.4) incurred in connection with the disputes that
are resolved in this Agreement have previously been included
in invoices to the Participants under the CSA. If such audit
discloses, or Peabody independently learns, that such
attorneys' fees and/or litigation costs of Peabody were, in
fact, included in any invoices that the Participants have
paid, the amount of such attorneys' fees and/ or litigation
costs shall be promptly refunded by Peabody to the
Participants, without interest. Peabody shall not be obligated
to conduct its own investigation of whether any such fees or
litigation costs were invoiced to the Participants.
4.5 Representations and Warranties of the Parties. The
Participants represent and warrant, and it is a condition of
this mutual release, that they are the sole owners of the
claims released by the Participants; that they collectively
represent one-hundred percent (100%) of the interests in the
MGS; and that the undersigned are duly authorized by their
respective governing boards or bodies to execute this
Agreement. Peabody represents and warrants, and it is a
condition of this mutual release, that it is the sole owner of
the claims released by Peabody herein, and that the
undersigned is duly authorized by Peabody's board to execute
this Agreement.
4.6 Claims Under this Agreement. It is specifically understood and
agreed that the foregoing releases shall not constitute a
waiver, release or abandonment of any claim by any Party for
breach by any other Party of any term, condition, or provision
of this Agreement.
5. Effect of Settlement.
5.1 No Admission of Liability. The Parties, and each of them,
acknowledge that this Agreement constitutes the settlement of
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<PAGE>
disputed claims. Nothing herein shall constitute or be deemed
to constitute any admission of liability by the Participants
or Peabody. The Participants and Peabody expressly deny any
and all liability for the claims and/or counterclaims asserted
in the Action.
5.2 The Settlement is Not a Precedent. The Parties agree that this
settlement shall not establish a precedent with respect to any
other existing or potential dispute under the CSA or under any
other coal supply agreement.
5.3 No Res Judicata or Collateral Estoppel Effect to Court Orders.
The Parties agree that the Court orders and rulings in the
Action shall not have res judicata or collateral estoppel
effect against any of the Participants or Peabody. The Parties
agree and recognize that all such orders and rulings were not
final and were subject to reconsideration and/or appeal, and
that, as a result of this settlement, both Peabody and the
Participants have foregone whatever rights they may have had
to pursue reconsideration and/or eventual appeal of any such
orders and rulings. No Party has waived its rights, if any,
(i) to offer or otherwise use such orders and rulings in other
proceedings or (ii) to object to such use.
5.4 Relationship to the CSA and Other Agreements. Except to the
extent specifically set forth herein, nothing contained in
this Agreement shall be interpreted to amend, supersede or
otherwise impact or affect the obligations of or release any
claim of any Party under the terms of the CSA, any extension
thereof, the MOAG, or any other agreements and memoranda
between the Parties regarding or pertaining to the CSA,
including, but not limited to, any provision in the CSA, the
MOAG or otherwise that provides the Participants with the
right to periodically audit Peabody's accounts and records
pertaining to its billings to the Participants under the CSA.
6. No Double Recovery by Peabody.
6.1 Absent Post-2005 Coal Deliveries. Peabody acknowledges that
unless it supplies coal to MGS after December 31, 2005,
pursuant to an extension of the CSA or a new coal supply
agreement, the payments required by paragraph 1, as they may
be adjusted pursuant to paragraph 2, constitute full
satisfaction of any obligation the Participants may have to
reimburse Peabody for the Disputed Costs and that, except as
provided for in paragraph 3 of this Agreement, no price
increases, additional
14
<PAGE>
charges or other obligations shall be imposed on the
Participants for or as a result of either RHCC or FRC,
regardless of any change in the nature or the scope of those
costs, including, but not limited to, those that result from
changes in accounting or invoicing practices or in either the
assumed facts or applicable law. In accordance with the
preceding sentence, the price of coal under the CSA for
deliveries of coal on or before December 31, 2005 shall not be
affected, directly or indirectly, by any payment made or cost
incurred pursuant to this Agreement. In addition to the RHCC
and FRC that are the subject of the Action and which are
addressed in this Agreement, it is expected that during the
current remaining term of the CSA Peabody will pay, or will
accrue on a short term basis in accordance with Peabody's
historical practice relating to BMM, additional amounts in
respect of (i) the costs of providing, on or before December
31, 2005, health care, life insurance and related benefits to
current retirees and those who will hereafter retire through
and including December 31, 2005 and (ii) costs associated with
the normal, on-going reclamation of the BMM prior to January
1, 2006 (both categories of such additional amounts,
regardless of the manner in which they are accounted for by
Peabody, being collectively referred to in this Agreement as
"On-Going Costs"). Peabody warrants and represents that it
will not attempt to re-categorize or accelerate any RHCC or
FRC as On-Going Costs so as to be able to charge the
Participants for such costs under the invoicing provisions of
the CSA. In order to implement the foregoing, the Parties have
further agreed that the following post-CSA procedures and
remedies, together with such remedies as may be afforded to
the Participants through periodic audits under the CSA of the
type referenced in paragraph 5.4 above, shall constitute the
sole procedures and remedies for determining whether there has
been a double recovery by Peabody and for adjusting therefor.
6.1.1 Final Reclamation Costs. Subject to paragraph 6.2, Peabody
shall not be entitled to bill and recover FRC from the
Participants as On-Going Costs. To ensure no such
double-recovery with respect to FRC, the Parties have prepared
and approved Exhibit C hereto, which summarizes various
categories of post-CSA reclamation work, rates for such work,
volumes for such work, and related estimated costs for such
work. Beginning on January 2, 2006, the Participants shall be
permitted to make one or more inspections of the BMM, arrange
for aerial photographs to be taken of the BMM, and conduct
such reasonable examination and audit of Peabody's books and
records (including but not limited to contracts, invoices,
ledgers,
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<PAGE>
evidence of payment, other accounting records, aerial
photographs, maps and other engineering materials) as are
necessary and sufficient (i) to make a meaningful comparison
between the post-CSA reclamation work that is expected at that
time and the post-CSA reclamation work that was assumed in the
preparation of Exhibit C and (ii) to make a meaningful
determination as to whether any FRC-related costs not listed
directly on Exhibit C (such as bonding expenses, insurance
premiums, security and administration costs, and taxes) have
been accelerated and billed to the Participants as On-Going
Costs. Peabody shall be responsible for maintaining its books
and records in a form that will permit the Participants to
meaningfully conduct the post-2005 audit referenced above in
this paragraph. Upon reasonable request, Peabody shall also
cooperate fully in making available to the Participants'
inside and outside auditors its relevant books and records, as
well as such Peabody personnel as may be required to explain
such books and records. The Participants' comparison analysis
and audit findings shall be completed and provided to Peabody
in writing by June 30, 2006. Peabody shall have thirty (30)
days to review the analysis and audit findings. If Peabody
objects to all or a portion of the comparison analysis and/or
audit findings, the Parties shall attempt to resolve the
dispute through good faith negotiations. If the Parties are
unable to resolve the dispute through such negotiations, the
dispute shall be resolved in a manner to be determined at that
time. If Peabody does not object within thirty (30) days and
if the comparison analysis and/or audit findings conclude that
work that was assumed in Exhibit C to occur post-CSA has
already been performed and/or that costs that were assumed to
occur post-CSA have already been paid by the Participants
(collectively, "Accelerated Work/Costs"), then Peabody shall,
except as provided below, refund to the Participants within
forty (40) days of its receipt of the comparison analysis
and/or audit findings, as applicable, all base refund amounts
as determined in accordance with Exhibit C and Schedules 1-4
attached thereto or, in the case of FRC-related costs not
directly listed in Exhibit C or its schedules, the amounts
paid by the Participants as On-Going Costs, plus the
additional amounts specified in paragraph 6.1.3 below. If
Peabody objects to the comparison analysis and/or audit
findings, then any refund owing to the Participants under this
paragraph shall, as to any disputed amounts only, be due and
payable ten (10) days following a final determination, either
through agreement or another dispute resolution process, of
the amount, if any, that is owed by Peabody to the
Participants with respect to Accelerated Work/Costs. Refund
amounts that are
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<PAGE>
not in dispute shall be due and payable within the forty (40)
day period specified above. Notwithstanding the foregoing, no
refund shall be due from Peabody to the Participants based on
the above-described comparison analysis or audit with respect
to a particular item of work or costs if Peabody establishes,
to the reasonable satisfaction of the Participants, that the
Participants have not been invoiced for such item as an
On-Going Cost under the terms of the CSA. Except as provided
in Paragraph 6.2, under no circumstances shall the provisions
of this Agreement, including this Paragraph 6.1.1, be
construed as requiring (a) the Participants to compensate or
reimburse Peabody for its actual FRC except through the
payments that are provided for in paragraph 1, as they may be
adjusted under the provisions of paragraph 2, or (b) Peabody
to refund or credit to the Participants any amounts with
respect to FRC other than as provided for in this paragraph
6.1.1 or as may be determined to be owing to the Participants
as a result of an audit under the CSA of the type referenced
in paragraph 5.4 (but in no event shall the Participants be
entitled to recover the same costs as a refund under this
paragraph 6.1.1 and as a refund or credit pursuant to the
Participants' audit rights under the CSA).
6.1.2 Retiree Health Care Costs. Subject to paragraph 6.2, Peabody
shall not be entitled to bill and recover RHCC from the
Participants as On-Going Costs. To ensure no double-recovery
with respect to RHCC, Peabody shall, in all further invoices
for coal delivered to MGS through December 31, 2005, continue
to invoice the Participants on the historical pay-as-you-go
basis for its current costs for retiree health care provided
on or before December 31, 2005. To the extent consistent with
Peabody's historic practice relating to BMM, such invoices may
also include accruals of the estimated amounts of the payments
to be made by Peabody within one-hundred eighty (180) days
thereafter for medical care provided to eligible retirees and
their eligible dependents by the end of the month covered by
the coal invoice but not reported to Peabody by that date
("IBNR Accruals"). IBNR Accruals shall be limited to health
care provided on or before December 31, 2005. The Participants
shall pay such invoiced costs (both actual retiree health care
costs and IBNR Accruals) in the same fashion they have paid
them historically on a pay-as-you-go basis. Accordingly,
except with respect to the payments that are provided for in
paragraph 1, as they may be adjusted under the provisions of
paragraph 2, Peabody shall not bill the Participants or
otherwise seek reimbursement from them under the CSA or
otherwise for any RHCC, whether under Financial Accounting
Standard ("FAS")
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<PAGE>
106 or any other mechanism, and shall not seek to recover RHCC
as On-Going Costs. The IBNR Accruals billed by Peabody in
accordance with this paragraph 6.1.2 shall be subject to the
same accounting, adjustment and audit procedures currently and
historically employed by the Parties or authorized by the CSA.
The Parties agree that the IBNR Accruals will be adjusted to
actual costs as soon as practicable but no later than
one-hundred eighty (180) days after billing. In order to
confirm Peabody's compliance with the foregoing provisions,
the Participants shall, commencing January 2, 2006, be
entitled to conduct a final audit of Peabody's books and
records as they apply to retiree health care costs, which
audit shall be completed no later than October 31, 2006.
Peabody shall be responsible for maintaining its books and
records in a form that will permit the Participants to
meaningfully conduct the final post-2005 audit referenced
above in this paragraph. Upon reasonable request, Peabody
shall also cooperate fully in making available to the
Participants' inside and outside auditors its relevant books
and records, as well as such Peabody personnel as may be
required to explain such books and records. Peabody shall have
thirty (30) days to review the audit report. If Peabody
objects to all or a portion of the audit report, the Parties
shall attempt to resolve the dispute through good faith
negotiations. If the Parties are unable to resolve the dispute
through such negotiations, the dispute shall be resolved in a
manner to be determined at that time. If Peabody does not
object within thirty (30) days and if such audit concludes
that any RHCC was billed to and paid for by the Participants
as an item of On-Going Costs, Peabody shall, within forty (40)
days of Peabody's receipt of the audit findings, refund to the
Participants the amount of the RHCC they paid as On-Going
Costs, plus the additional amounts specified in paragraph
6.1.3 below. If Peabody objects to the audit findings, then
any refund owing to the Participants under this paragraph
shall, as to the disputed amounts only, be due and payable ten
(10) days following a final determination, either through
agreement or another dispute resolution process, of the
amount, if any, that is owed by Peabody to the Participants
with respect to RHCC improperly billed to the Participants as
On-Going Costs. Refund amounts that are not in dispute shall
be due and payable within the forty (40) day period specified
above. Except as provided for in paragraph 6.2, under no
circumstances shall the provisions of this Agreement,
including this Paragraph 6.1.2, be construed as requiring (a)
the Participants to compensate or reimburse Peabody for its
actual RHCC except through the payments that are provided for
in Paragraph 1, as they may be adjusted under the provisions
of Paragraph 2, or (b) Peabody to
18
<PAGE>
refund or credit to the Participants any amounts with respect
to RHCC other than as provided for in this paragraph 6.1.2 or
as may be determined to be owing to the Participants as a
result of an audit under the CSA of the type referenced in
paragraph 5.4 (but in no event shall the Participants be
entitled to recover the same costs as a refund under this
paragraph 6.1.2 and as a refund or credit pursuant to the
Participants' audit rights under the CSA).
6.1.3 Calculation of Double Recovery Refunds. Refunds to the
Participants under paragraphs 6.1.1 and 6.1.2 of FRC or RHCC
improperly billed as On-Going Costs shall consist of a base
amount or amounts, a royalties and taxes adjustment and an
accrued interest component, each of which shall be paid
concurrently within the period specified for refunds in
paragraphs 6.1.1 and 6.1.2. In the case of FRC, the base
amount(s) shall be calculated as specified in Exhibit C to
this Agreement and Schedules 1-4 to Exhibit C or, in the case
of FRC-related costs not directly listed in Exhibit C or its
schedules, shall be equal to the amounts paid by the
Participants as On-Going Costs. In the case of RHCC, the base
amount(s) shall be equal to the amount of accelerated RHCC
that was invoiced to and paid by the Participants. The
royalties and taxes adjustment shall be calculated by applying
to each base amount subject to refund the royalty and tax
rates that were applicable at the time the accelerated FRC or
RHCC, as the case may be, was paid by the Participants and
shall include any additional royalties and taxes paid in
respect of such associated royalties and taxes. If, however,
the actual date of payment of the base amount cannot be
determined with reasonable certainty, then the royalty and tax
rates applicable to Peabody's January 2004 invoice under the
CSA for coal delivered in December 2003 shall be applied.
Simple interest at eight percent (8%) per annum shall be added
to both the base refund amount(s) and the royalties and taxes
adjustment. Such interest component shall be calculated for
the period beginning when the accelerated FRC or RHCC, as the
case may be, was paid by the Participants and extending
through and including the date of Peabody's refund payment. If
the date of payment by the Participants of accelerated FRC or
RHCC cannot be determined with reasonable certainty, then
interest on both the base amount and the royalties and taxes
adjustment shall be calculated beginning January 1, 2004.
6.2 During an Extension or Replacement of the CSA. If the CSA is
extended pursuant to sections 1.02 and 1.03 of the CSA, or the
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<PAGE>
Parties enter into a replacement coal supply agreement, then
the Parties shall take such reasonable steps as are necessary
to ensure that: (1) the Participants receive full credit for
the payments made by them under this Agreement and for the
associated time value of money, with such full credit and
associated time value of money to be applied in a manner
mutually agreeable to the Parties and incorporated into the
extended CSA or replacement coal supply agreement; and (2) the
extended CSA or the replacement coal supply agreement shall
include provisions that resolve the issue of cost
responsibility of the Participants for retiree health care
costs and final reclamation costs.
7. Miscellaneous Provisions.
7.1 Calculation of Interest. All interest imposed or deducted
pursuant to this Agreement shall be calculated as simple
interest, with no compounding.
7.2 Cooperation of the Parties. The Parties will cooperate with
one another in good faith by providing information, allowing
access to BMM, and preparing and executing such additional
documents as may be reasonably required to effectuate and
carry out the purposes of this Agreement. The Participants
shall be permitted to make inspections of the BMM, arrange for
aerial photographs to be taken of the BMM, and conduct such
reasonable examination and audit of Peabody's books and
records (including but not limited to accounting records,
aerial photographs, maps and other engineering materials) as
is necessary and sufficient to effectuate and carry out the
purposes of this Agreement and/or to enforce the provisions of
this Agreement.
7.3 Survival of Obligations; Indemnity. Notwithstanding any
provisions of this Agreement to the contrary, the warranties,
representations and undertakings of this Agreement shall
survive the mutual releases herein. Each of the Parties shall
indemnify and hold the other Parties harmless from and against
any claim, demand, damage, debt, account, liability,
obligation, cost, expense, lien, action or cause of action of
any nature suffered or incurred as a result of any breach by
that Party of a covenant, representation or warranty set forth
in this Agreement.
7.4 Arms-Length Agreement. This Agreement represents a compromise
and settlement of certain pending disputes between
20
<PAGE>
the Parties and is entered into following arms-length
negotiations and mediation. The Parties have read this
Agreement carefully and completely, have had the advice and
assistance of legal counsel, and have not been influenced to
any extent whatsoever by any representations or statements
made by any Party other than those in this Agreement. No
promises, inducements or considerations have been offered and
accepted or given, except as herein set forth.
7.5 Ambiguities. This Agreement was jointly drafted by the Parties
and therefore ambiguities in this Agreement are not to be
construed against any Party on the basis that it was the
drafter.
7.6 Amendment. This Agreement may be amended or modified, in whole
or in part, only by an agreement in writing executed by all
Parties hereto and making specific reference to this
Agreement.
7.7 Waiver. None of the provisions of this Agreement shall be
considered waived by a Party unless such waiver is given in
writing. The failure of a Party to insist in any one or more
instances upon strict performance of any of the provisions of
this Agreement or to take advantage of any of its rights under
this Agreement shall not be construed as a waiver of any such
provisions or the relinquishment of any such rights for the
future, but the same shall continue and remain in full force
and effect.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one
instrument.
7.9 Headings. The headings of the paragraphs of this Agreement are
for convenience only and in no way alter, amend, modify, limit
or restrict the contractual obligations of the Parties.
7.10 Binding on Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by
and against the Parties hereto and their respective successors
and assigns.
7.11 Entire Agreement. This Agreement, together with the attached
exhibits, contains the full and integrated statement of each
and every term and provision agreed to by the Parties for
purposes of settling the Action. All prior negotiations and
agreements between the Parties hereto with respect to the
settlement of the Action are superseded by this Agreement, and
there are no
21
<PAGE>
representations, warranties, understandings or agreements of
the Parties relating to the settlement of the Action other
than those expressly set forth herein or in an attached
exhibit, except as subsequently modified in writing, executed
by all parties.
7.12 Governing Law. This Agreement shall be governed by and
construed and interpreted according to the laws of the State
of Nevada, determined without reference to conflicts of law
principles.
7.13 Return of Confidential Documents. Within sixty (60) days after
the execution of this Agreement by all of the Parties, the
Parties, and each of them, shall comply with the provisions of
the Stipulation of Confidentiality executed by counsel for the
Parties on or about January 30, 1998, and the subsequent
letter agreement executed by counsel for the Parties on or
about March 2, 2001, requiring the return or destruction of
Confidential Materials (and all copies of such documents),
including all documents stamped "confidential" pursuant to the
Stipulation or letter agreement.
7.14 Limited Waiver of Mediation Privilege. Notwithstanding any
provision of law to the contrary and any confidentiality
agreement previously entered into by the Parties, including,
but not limited to, the confidentiality agreement executed by
the Parties at the time of the mediation referenced in recital
K, any of the Parties may, for the limited purpose of
demonstrating the reasonableness of this settlement to any
regulatory or other governmental authority having jurisdiction
over the Party, disclose to such regulatory body or other
governmental authority the content of the Parties'
negotiations that resulted in this settlement, including, but
not limited to, the statements of the Parties' representatives
and the mediator at or in connection with the mediation. In
making any disclosure as permitted in this paragraph 7.14, the
Party making the disclosure shall use reasonable best efforts
to seek to have the disclosed information maintained by the
regulatory body or other governmental authority as
confidential information.
7.15 No Third Party Rights. This Agreement shall not be interpreted
as creating any right or benefits of any kind or nature
whatsoever in any third party or class of persons not parties
to it.
7.16 Notices. Notices under this Agreement shall be in writing and
shall be deemed properly given if delivered by hand or sent by
22
<PAGE>
facsimile (receipt verified), by overnight courier, or by
first class mail, postage prepaid to the person specified
below:
Peabody: PEABODY WESTERN COAL COMPANY
Attention: President
701 Market Street
St. Louis, MO 63101
Telephone: 314-342-3400
Facsimile: 314-342-3419
Edison: SOUTHERN CALIFORNIA EDISON COMPANY
Attention: Manager, Energy Supply & Management
2244 Walnut Grove Avenue
Rosemead, California 91770
Telephone: 626-302-3241
Facsimile: 626-302-3254
SRP: SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND
POWER DISTRICT
Attention: Manager, Fuels Department
P.O. Box 52025
Mail Stop POB 001
Phoenix, Arizona 85072
Telephone: 602-236-4311
Facsimile: 602-236-4322
LADWP: DEPARTMENT OF WATER AND POWER
CITY OF LOS ANGELES
Attention: Assistant General Manager, Power
Generation
Department of Water and Power
City of Los Angeles
111 North Hope Street, Room 1522
Los Angeles, CA 90012
Telephone: 213-367-4435
Facsimile: 213-367-0313
NPC: NEVADA POWER COMPANY
Attention: Manager of Fuels
6226 West Sahara Avenue
Las Vegas, Nevada 89146
Telephone: 702-367-5996
Facsimile: 702-227-2455
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<PAGE>
Written notices shall be deemed delivered on the fifth
business day after deposit in the United States mail, or when
received if sent by facsimile or overnight courier or
delivered by hand. The designated address of a Party set forth
above may be changed at any time upon written notice by the
Party given in accordance with this paragraph 7.16.
7.17 When Effective. This Agreement shall become effective and
binding when it has been executed by all of the Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Settlement
Agreement and Mutual Release to be executed by their duly authorized officers as
of the dates set forth under their respective signatures.
PEABODY WESTERN COAL COMPANY
By:
-----------------------------------
Name: John L. Wasik
-----------------------------------
Title: President
-----------------------------------
Date:
-----------------------------------
SOUTHERN CALIFORNIA EDISON COMPANY
By:
-----------------------------------
Name: Harold B. Ray
-----------------------------------
Title: Executive Vice President
-----------------------------------
Date:
-----------------------------------
24
<PAGE>
SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT
By:
-----------------------------------
Name: David G. Areghini
-----------------------------------
Title: Associate General Manager Power,
Construction and Engineering
Services
-----------------------------------
Date:
-----------------------------------
NEVADA POWER COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
DEPARTMENT OF WATER AND POWER
THE CITY OF LOS ANGELES
BY
BOARD OF WATER AND POWER
COMMISSIONERS OF THE CITY OF LOS
ANGELES
By:
-----------------------------------
Name: Enrique Martinez
-----------------------------------
Title: Assistant General Manager
-----------------------------------
Date:
-----------------------------------
And
By:
-----------------------------------
Name: John C. Burmahln
-----------------------------------
Title: Secretary
-----------------------------------
Date:
-----------------------------------
25